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DOI: 10.1177/0191453707080592
2007 33: 736 Philosophy Social Criticism
Jonathan Bowman
Challenging Habermas' response to the European Union democratic deficit

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Jonathan Bowman
Challenging Habermas
response to the European
Union democratic decit
Abstract Jrgen Habermas response to the European Union democratic
decit calls for a minimal threshold of democratic legislation through an
explicit constitutional founding. He defends a model of freedom as auton-
omous self-determination by proposing to tie basic rights in the EU to a uni-
vocal form of European-wide popular sovereignty. Instead of constructing
a common European political identity, I appeal to the novel democratic
potential of institutions in the EU such as the Open Method of Coordina-
tion for mediating overlapping sovereignties in accord with freedom as
non-domination. The concluding example of basic rights to effective parti-
cipation for immigrants and permanent minorities illustrates the strengths
of Iris Youngs and James Bohmans republican views of non-domination
over Habermas call for a European-wide collective willing.
Key words James Bohman democratic decit European Union
freedom Jrgen Habermas non-domination Open Method of
Coordination republicanism sovereignty Iris Young
Although the number of European Union (EU) policies and laws that
affect the citizens of its member states increases each year, citizens
remain skeptical concerning their prospects for real deliberative inu-
ence over EU level decision-making. Hence, arises what has come to be
known as the democratic decit. In formulating a response, Jrgen
Habermas has called for the European-wide integration of the will-
formation of EU citizens through the founding of an explicit consti-
tution. According to this minimal threshold of democratic legislation,
citizens would authorize the laws and policies to which they are held
subject through the creation of institutions that foster European-wide
PSC
PHILOSOPHY & SOCIAL CRITICISM

vol 33 no 6

pp. 736755
Copyright 2007 SAGE Publications (Los Angeles, London, New Delhi and Singapore)
and David Rasmussen
www.sagepublications.com DOI: 10.1177/0191453707080592
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solidarity. On this proposal, subjects of EU policy must authorize legis-
lation through distinctly European exercises of citizenship and not
merely through the political institutions of member state governments.
While I agree with Habermas that a response to the democratic decit
is necessary, in a four-step argument I disagree with his proposed means
that do not go far enough to incorporate into decision-making all those
potentially affected by EU law and policy, including an expanding number
of non-citizens. This will ultimately require a much wider interpretation
of the democratic decit than Habermas addresses.
The rst step briey reviews Habermas conception of constitutional
patriotism. This details how political rights to self-legislating autonomy
in the EU are realized through an explicit constitution. By drawing on
short selections from his four published essays on the EU democratic
decit, we will focus primarily on the conception of freedom as auton-
omous self-legislation he utilizes for upholding democratic legislation as
the threshold for legitimate self-rule.
The second step then challenges this conception of autonomous self-
legislation and shows how it actually undermines the equality of conso-
ciates he attempts to protect through a shared European constitution.
As an alternative, more extensive measures of democratic inclusion are
proposed by Iris Young on her republican model of freedom as non-
domination.
In the third step, I use examples drawn from immigration in the EU
and its member and applicant states to develop Youngs characteristically
republican appeal to ties of social and economic interdependence rather
than a constitution for the realization of a schedule of basic rights.
In the nal step, novel governance mechanisms in the EU provide a
legal form for a system of basic rights extended to immigrants that can
begin to answer the democratic decit by making both the EU and its
member states more democratic. In order to strengthen the normative
basis of such examples, James Bohmans principle of the democratic
minimum provides a necessary limitation on Iris Youngs appeal to ties
of social and economic interdependence.
I Constitutional patriotism as an ideal for the European Union?
The development of Habermas mature view of European-wide consti-
tutional patriotism as a response to the democratic decit has gone
through a series of stages in his publications on the topic. Each in a
unique way demonstrates his effort to realize a system of political rights
for the EU on the model of freedom as self-legislation through European-
wide ties of solidarity. Supplying human rights with a juridical form in
this manner confers rights upon persons insofar as they are recognized
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as citizens under a shared constitutional framework that they have freely
chosen through acts of collective authorization. However, before giving
a general outline of his publications on the democratic decit, we must
rst give an overview of his taxonomy of basic rights as necessary back-
ground for situating constitutional patriotism in the context of his
broader democratic theory.
His proposals for realizing basic rights through identication with
a particular constitution deal explicitly with institutionalizing human
rights via a threefold taxonomy of moral, political and social rights. On
the one hand, at the conceptual level, Habermas supports a moral,
universalistic, egalitarian interpretation of human rights that have the
potential of being universally inclusive of any person bearing a human
face. On the other hand, at the practical level of the coercive means
for realizing positively enacted political rights, he proposes a model of
constitutional patriotism as criteria for the limited inclusion of a particu-
lar body of self-legislating citizens within a single sovereign political
community closed off from interference by outsiders.
1
And as additional
limiting criteria for this practical guarantee of rights within a particular
community, he calls for solidarity between citizens as a necessary pre-
requisite. Such solidarity requires a shared political culture and the
protection of a third and nal category of rights: social rights to goods
and benets that serve as the pragmatic pay-off for political membership.
Moving then to the contributions of his proposals explicitly address-
ing the decit, one element shared in common between them for the
founding of basic rights through a constitution is the consistent attempt
to guarantee the freedom and equality of those affected by its laws and
policies through a common political identity. Another common strand
to these proposals holds that liberal political rights are not enough to
achieve the social solidarity of strangers required to overcome the decit.
Therefore, only a European constitution will help secure the material
conditions of life lost to the increasing predominance of global move-
ments of capital.
The rst stage, his Response to Dieter Grimm, follows these common
themes. Here he addresses a crucial challenge to such European-wide
solidarity: that there is no distinctly European people from which to
draw upon for the exercise of an expressly European political culture.
2
As an initial reply, he points to the historical capacity of democratic
nation-states to abstract to ever-greater levels of political inclusion under
a shared system of rights and a common political culture. Drawing upon
the formation of national identities in European states, he initially seeks
the same strategy for the construction of a more expansive European-
wide political identity through an explicit constitution. Institutions with
the capacity to act supranationally will allow member states to recapture
the benets offered by the welfare state at the higher European level.
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In the second stage, in Postnational Constellation, he argues that
democracy as collective self-legislation historically achieved by the
sovereign state could realistically be extended to the supranational level.
In order to make this possible, he introduces a novel institutional design
for the circular process of identity formation that was essential to consti-
tutional patriotism as highlighted in the passage above. He alters his
conventional conception of a parliamentary-based common political
culture to allow for the novel practices present in the Council of Minis-
ters as a proposed second chamber of the EU legislature. He makes these
concessions in order to construct a shared political identity out of the
deliberations that occur within the intergovernmental negotiations
characteristic of the transnational decision-making process of the EU.
3
To achieve the requisite social solidarity to make this feasible, he nds
that European citizenship must pay in a currency beyond mere politi-
cal rights to include the additional guarantee of social, ecological and
cultural rights.
4
In the third stage, in The European Nation State and the Pressures
of Globalization, he again revisits the question of institutional design.
This time he emphasizes that only as a legally constituted and unied
federation and not merely under the above practices of inter-state nego-
tiation can the EU muster the requisite political solidarity to ensure the
basic rights previously protected by the sovereign nation-state.
5
Habermas
states that only as a federation could it [the European Union] summon
up the political strength to decide to apply corrective measures to markets
and set up redistributive regulatory mechanisms.
6
On this account, a
unied European federation is the main source of the political identity
and ties of solidarity necessary for democratic legislation under a European
constitution. In this manner, by taking on the democratic characteristics
and functions of a federal state, the European Union can catch up with
and fence in global markets to render their processes subject to greater
political legitimacy.
Finally, in the last stage, in Why Europe Needs a Constitution, he
attempts to balance the criteria for a legitimate EU constitution through
democratic legislation with a shared historical commitment to social
justice.
7
This requires him to lighten the stronger conditions for democ-
racy as democratic self-rule seen in the previous proposals to a more
modest view that regards a European constitution as a way to preserve
a shared form of life. However, this last proposal still follows the
consistent plan of appealing to a shared European-wide political identity
to legitimate an explicit constitution. This time legislative procedures
are no longer the sole source of the constructed European identity, as a
shared European history of ensuring a minimal threshold of social
justice is also included. Thus, at this nal stage, his original view of
constructing a common political identity through the abstract procedures
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of democratic legislation turns into a more substantive European politi-
cal identity by virtue of a shared historical experience. This common way
of life serves as the motivation for the ever more inclusive extension of
obligations of justice across member state borders and not merely via
shared practices of democratic opinion- and will-formation.
In brief summation of his general view of constitutional patriotism
for the EU, while I ultimately agree with Habermas that social and politi-
cal rights must be given juridical form as legal rights, I disagree with his
restrictive portrayal of political and social solidarity for the realization
of human rights. The next section shows that this leads Habermas to
strip basic rights of their moral universality through the exclusive juris-
diction of a constitution. Ultimately, this model of self-legislating auton-
omy serves to undermine the moral value of the norms of equality and
solidaristic inclusion he originally sought to uphold by consistently
appealing to an explicit constitution to expand the scope of political
control over shared European social problems. In what follows, this aw
can be traced back to the notion of freedom as self-legislation required
for his view of constitutional patriotism and the overly restrictive notion
of political identity, solidarity and common European political culture.
I thus disagree with his response to the democratic decit for two
related but distinct reasons: the rst is a matter of scope while the second
concerns his view of democracy as collective willing. With respect to the
former, his depiction of the decit proves to be too narrow, as it merely
seeks to allow citizens of member states more robust forms of political
participation at the EU level, and in particular, through a strengthened
European Parliament and a modied Council of Ministers. He overlooks
the more glaring and most tyrannical side of the democratic decit: the
domination of EU citizens over non-citizens.
As for my second major disagreement with his view of facing the
decit, his notion of transnational democracy still borrows too much
from the institutional heritage of collective willing from the historical
nation-state. In this respect, even his solution to the more narrow form
of the democratic decit that he proposes falls short. The recapturing
of political solidarity at the European level by identication of member
state citizens with specically European forms of citizenship still regards
citizenship as a univocal form of political identity. However, this does
not adequately account for the multiple forms of citizenship made
possible by the institutions of the EU. Nor does it recognize the reex-
ive processes of endogenization whereby to be a citizen of a member
state increasingly means to be a European Union citizen and vice versa.
8
Therefore, instead of forming a European demos, the best way to
enhance the freedom of those affected by its burgeoning number of laws,
mandates and directives is to form a democracy of democracies in a
polity of multiple demoi.
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741
Bowman: Challenging Habermas response
II Iris Youngs republican challenge to Habermasian solidarity:
the fact of interdependence
Tied to the problems of scope mentioned above, Habermas proposal to
face the decit gives over too much emphasis to collective willing through
parliamentary legislation that can potentially dominate non-citizens. This
becomes particularly problematic when considering the lack of political
autonomy currently experienced by European immigrants and third-
country nationals that are daily affected by both EU and member state
law and policies.
For some, the republican tradition might be the place of last resort to
turn to remedy the problem of democratic self-legislation as the minimal
criterion for democracy in the EU. This would be because republicanism
has been traditionally associated with the communitarian ideals of collec-
tive willing that I have so far attempted to repudiate. Although repub-
licanism supports a certain idea of the person as rooted in communal
life, Young expands the scope of those falling under the protection of
freedom as non-domination by appealing to ties of social and economic
interdependence within a given polity instead of tying political partici-
pation back to any particular locus of political identity. Therefore, Iris
Young convincingly argues that freedom as non-domination as one
characteristic feature of republicanism can effectively protect against
the ills of self-legislation. For her, republican freedom is not necessarily
a positive communitarian conception of freedom that promotes the
collective autonomy of citizens. Instead, it is better interpreted as a
negative conception as its primary feature is to circumvent political
domination in any form, including that faced by non-citizens.
Young effects this separation in two main ways, utilizing both a politi-
cal and a moral component. First, at the political side, in contrast to
communitarian rejections of the state, Young still preserves a very strong
role for the state. Despite the states various historical shortcomings, she
nds that it has been the most effective means to realize justice. However,
on the moral side, she employs the normative standard of freedom as
non-domination as a way to criticize the most pernicious features of state
institutions. On this point, she mentions the potential dangers of conat-
ing political justice with the laws of the state on the grounds that it
potentially fosters the arbitrary domination of certain groups.
[I]t makes moral obligations of justice contingent on the existence of particu-
lar political jurisdictions . . . [S]uch a position robs principles and practices
of justice of any moral force. They become as arbitrary as borders that
happen to be drawn, and can change as borders change. It cannot be right,
however, that the scope of justice is determined by the scope of political
institutions which recognize some as insiders who can make justice claims
and some as outsiders who must go to another tribunal.
9
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In her distinctly republican appeal to freedom as non-domination to
follow, Young argues that even the self-determining preferences of actors
and entire political institutions can be interfered with if they are found
arbitrarily to dominate others. Through the moral force of her concep-
tion of freedom she retains the critical capacity to call upon political
institutions to expand the scope of political justice to include the voices
of those subject to arbitrary domination.
On her republican construal of such an argument, one major form
of domination is to be subject to the arbitrary will of another. In its
political form, this would mean the absence of participation in formu-
lating laws and policies that govern ones daily affairs. Youngs notion
of freedom as non-domination therefore shares with the communitar-
ian tradition an emphasis on the importance of active public partici-
pation. However, the default setting is not one of non-interference from
the state or from any other group that might hinder autonomous self-
determination. Interference is indeed acceptable insofar as it is not arbi-
trary and tracks the interests of those most immediately affected.
For the development of such a revised conception of political partici-
pation that permits interference in the sovereign jurisdiction of a consti-
tution and thereby allows for the construction of more expansive bounds
of democratic participation, we must turn to Youngs republican view of
freedom. In advancing such a view, she initially agrees with one major
aspect of Habermas notion of constitutional patriotism: his rejection of
nationalistic afnity as the basis for mutual respect, inclusion and co-
operation. However, as points of contention, she modies his views of
solidarity and freedom.
Habermas ideal assumes, however, an already existing jurisdiction covered
by a single set of procedures and laws. His concept does not so usefully
explain normative groups for creating or changing jurisdictions covered by
constitutional procedures . . . [J]urisdictional boundaries are often drawn
in ways that intentionally or unintentionally exclude some people affected
by actions and policies from having to be considered. Normative theory
and political practice wishing to correct this mismatch cannot rely on a
concept of solidarity based on the prior assumption of shared jurisdiction
or constitution.
10
As an alternative to Habermas view of freedom as the sovereign self-
legislation of a political community, Young proposes her notion of
differentiated solidarity and freedom as non-domination. In contrast to
Habermas, her conception of freedom as non-domination permits inter-
ference in the legislation of a polity insofar as laws are found to subject
non-citizens to the arbitrary whim or arbitrary good favor of those
holding law-making power.
Youngs view of freedom as non-domination recognizes that agents
are related in a variety of ways they have not freely chosen such as
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proximity, economic interaction and the unintended consequences of
individual and collective actions.
11
Her ensuing conception of solidarity
weds obligations of justice not to constitutional legislation, nor to a
shared history, nor to a common political culture, but instead to a view
that obligations of justice extend as far as economic and social ties of
interdependence. Her revised view promotes freedom as non-domination
for all persons whose actions are assumed as premises in drawing the
jurisdictional bounds of political justice even in cases where the causal
links in ties of interdependence are unintended.
Applying Youngs insights then to the transnational level, she puts
the dilemma as follows for a Habermasian-style federated proposal.
Given the fact of extreme social and economic ties of interdependence
in the regional economy of the EU, Habermas nevertheless construes
obligations of justice exclusively in terms of the bounds of constitutional
legislation. Young disagrees with such an exclusionary strategy that
attempts to circumscribe a common political culture:
Because a people stands in interdependent relations with others, however,
a people cannot ignore the claims and interests of those others when the
formers actions potentially affect the latter. In so far as outsiders are affected
by the activities of a self-determining people, those others have a legitimate
claim to have their interests and needs taken into account even though they
are outside the government jurisdiction.
12
On Youngs evaluation, Habermas view of the self-determination of EU
citizens holding a shared political identity is thus a violation of demo-
cratic equality. It subjects outsiders to domination when affected by
policies and regional networks of interdependence that they are not given
the opportunity to inuence. Given these basic differences concerning
norms of freedom and equality, the practical merits of Youngs develop-
ment beyond Habermas can be seen most clearly in the next section
highlighting the inability of constitutional patriotism to integrate those
immigrants and permanent minorities that fall outside the legal protec-
tions of a constitution.
III Practical illustration: political non-domination and EU
immigration
As a possible illustration of how Youngs more differentiated view of
political solidarity could better answer the democratic deficit in the
EU, we will turn to the legal status of its immigrants and permanent
minorities and appeal instead to the normative ideal of freedom as non-
domination.
13
The application of her views to the EU in this illustration
can better respond to at least one key feature of the decit where
Habermas falls short: the practice of not granting a voice to the estimated
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30 to 60 million immigrant laborers and permanent third-country nation-
als currently resident in the EU. Youngs more extensive measures of
political inclusion could give these non-citizens a say in the formation
of European policies to which they are daily subjected. Her extension of
basic political rights to broaden the meaning and terms of political
membership to non-citizens in the EU thus presents a diversion from the
Habermasian model for facing the decit that with its state-like qualities
admits difculty in extending such rights to non-citizens.
14
For example, in Habermas 1990 essay Citizenship and National
Identity he supports the right of European states to restrict immigration
in the event that the inclusion of immigrants is found to circumvent the
establishment of a common European-wide political culture.
15
And in
his more recent 1996 essay, Struggles for Recognition in the Democratic
State, the measures for political inclusion are even more restrictive.
Here he nds that republican arguments like Iris Youngs that call for
assistance to immigrants by drawing from evidence of the growing
regional social and economic interdependence
. . . do not, to be sure, justify giving actionable legal rights to immigration
but they do justify a moral obligation to have a liberal immigration policy
that opens ones own society to immigrants and regulates the ow of immi-
gration in relation to existing capacities.
16
In the end, his strict adherence to positive law and autonomous self-
legislation as the juridical form for realizing his view of human rights
must ultimately exclude some persons affected by European-wide ties
of social and economic interdependence from the protections to be
secured through a European constitution. In other words, as mentioned
earlier by Young, tying moral obligations to the exercise of the consti-
tutional jurisdiction of a single community strips his notion of justice
of the normative scope required for a more universalistic protection of
basic political rights.
In contrast, Youngs revised threshold of legitimacy in terms of rights
to political non-domination could counter an aspect of the democratic
decit termed the double dilemma that is especially unique to the
problems that emerge through enhanced levels of immigration in
European civil society. EU legal scholar Jo Shaw describes this problem-
atic political situation succinctly as follows:
This double dilemma comprises the need to reinforce democratic traditions
by including new waves of immigrants into national citizenship, at a time
when internal solidarity is at its weakest.
17
In other words, there has been a simultaneous breakdown of social and
political consensus internal to European nation-states along with a new
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wave of immigrants that must be politically incorporated into over-
burdened democratic institutions. We cannot therefore fall back on a
shared political identity that has already been weakened at the national
level as a way to resolve the dilemma.
Instead, we can apply Youngs expanded view of differentiated soli-
darity to this international dilemma posed by immigration, as a develop-
ment of her prior arguments as they bear on the European context. The
prevailing ties of social and economic interdependence already present
in the EU could incorporate immigrants politically at the more encom-
passing transnational level instead of drawing on an already weakened
national identity. The republican contribution here provides the needed
emphasis on enhancing active forms of political participation for those
most dominated by ties of interdependence without seeking the political
integration of immigrants in the collective will of any single demos.
Therefore, in contrast to even the thinnest possible interpretation of the
political identity associated with Habermas constitutional patriotism,
the rights to political participation already associated with EU citizen-
ship need not be conned exclusively to citizens of member states and
need not fall under a shared form of solidarity or common European
political culture. It is not so much a matter of how thin or thick is the
identity that is being sought, but more a question of how to create a
democracy of democracies for overlapping sites of citizenship that are
drawn instead from shared ties of social and economic interdependence.
While I agree with Habermas proposal to draw on the system of
rights already nascent in the material constitution of the EU and expli-
citly formalized in the draft constitution in order to face the democratic
decit, I disagree that this system of rights should circumscribe a single
European demos. Consider instead, for example, articles 42 and 43 of
the EU Fundamental Charter of Rights respectively that instead suggest
an overlapping network of plural demoi. In addition to the extension
of such rights to EU citizens, these rights grant any natural or legal
person residing or having a registered ofce in a member state right of
access to all Union documents and the right to refer to an ombudsman
in cases of maladministration in Community institutions.
In support of my more expansive transnational construal of politi-
cal rights to create a plural people of peoples or an EU democracy of
democracies, Youngs view of political inclusion can also be applied to
the civil society networks that allow for such political integration of
immigrants without requiring them to assent to a common European-
wide identity. In her stylized response to the aforementioned double
dilemma posed by enhanced immigration, she says
Most migrants do in fact wish to be integrated into labour markets and
political institutions of the societies they have joined; many, however, resist
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the suggestion that they should acquire the dominant national culture and
privatize their native culture as a condition of these economic and political
opportunities. This distinction has generated some conict in some European
cities.
18
The historical precedent established by relevant cases already supports
her claims for a less restrictive, multi-leveled view of political member-
ship for migrants that can peacefully incorporate ongoing conict into
legal and juridical processes of reconciliation. For instance, the European
Court of Justice has already begun to defend fundamental rights as
cosmopolitan human rights. While potentially cosmopolitan in scope,
the normative justication of these basic rights in terms of freedom as
non-domination is essentially pragmatic, deriving its moral universality
from material ties of social interdependence and not by virtue of more
contested forms of shared political identity.
As specic examples, Youngs politicized protection of basic rights to
self-determination grants migrants additional entitlements such as those
expressed in article 45 of the EU Fundamental Charter which provides
third-country nationals legally resident in any member state the Union-
wide freedom of movement and residence. These rights are secured at the
EU level in order to offset to the transient employment needs of trans-
national corporations that stretch beyond the sovereign jurisdiction of any
given member state. In addition, these rights guarantee residence for non-
citizens without discrimination when they are forced to move between EU
member states in order to carry on employment. Fairly robust basic rights
are also protected by the European Court of Justice for foreign laborers
in a growing number of EU member states that in addition to permitting
social security benets also allow for political representation. In some
member states these include rights to run for ofce in local European
elections without the requirement of citizenship in any member state.
Despite the growing precedent of extending more expansive social
and political rights to non-EU citizens, Habermas could pose the follow-
ing challenge to Young that would question her more inclusive criteria
of social and economic interdependence for securing republican non-
domination. He could appeal to his consistent response to the tension
between facts and norms prevalent in the constitutional state, maintain-
ing that democratic self-legislation offers the most adequate normative
account of democracy, even considering the facts of growing multi-
culturalism and increasing interdependence. In other words, without
more explicit legal-juridical criteria for the protection of these rights to
political non-domination beyond social and economic interdependence,
there are no compelling normative reasons for coercive institutions like
the system of European courts to protect the basic rights of immigrants.
While Young has indeed expanded the scope of political inclusion,
without a stronger legal-juridical basis for these rights, we are left
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wondering how exactly these rights will be realized in a way that does
not require an incredible effort of political voluntarism on the part of
EU institutions and their member states.
IV How to realize participatory rights for European
immigrants? The democratic minimum and the Open
Method of Coordination
With such growing precedent for the realization of basic rights for immi-
grants mentioned above that has already been secured by the EU Charter
and Court of Justice, we have at least some preliminary reasons to
believe republican rights to political non-domination in the EU can serve
as a more inclusive framework for guaranteeing the freedom and equality
of immigrants than Habermas model of freedom as autonomous self-
legislation. However, without a clearer determination of Youngs non-
arbitrariness criteria for securing political non-domination, we are
pressed to show that her model falls to the opposite extreme, by being
too inclusive and too voluntaristic.
In initial reply, Young would agree, recasting the concern over the
legal-juridical scope of such rights as a question of the proper insti-
tutional design for securing non-domination in the face of growing inter-
dependence:
[I]n a densely interdependent world, peoples require political institutions
that lay down procedures for co-ordinating the actions of all of them,
resolving conicts and negotiating relationships. This argument for a
concept of self-determination as relational autonomy in the context of non-
domination applies as much to large nation-states as to small indigenous
or ethnic groups.
19
The task then of this section is to provide a non-voluntaristic basis for
a European human rights policy that does not seek a uniform political
identity but instead balances plural sovereignties with a shared European-
wide commitment to human rights. As an initial point of continuity with
Habermas constitutional patriotism, my strategy will still require a
common system of basic rights. However, as a point of discontinuity,
the particular realization of such rights in concrete political institutions
will come about through overlapping plural identities. In order to provide
support for such a proposal that will require some creative institutional
design, we will turn to novel governance mechanisms in the European
Union, and in particular, the Open Method of Coordination to provide a
legal framework for the realization of the rights of immigrants in the EU.
New practices for the realization of basic rights to deliberative initi-
ation in the EU are needed because currently there is no European-wide
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constitutional consensus on the rights of immigrants and permanent
national minorities that have been agreed upon at the EU level.
20
Indi-
vidual member states have widely divergent approaches to the partici-
patory rights of immigrants, permanent third-country nationals and
minorities. And on the prevailing interpretations of subsidiarity, both
groups would fall within the sovereign borders of member states under
the jurisdiction of their respective constitutional traditions that have
historically not carried much success in integrating those that fall outside
the majority political culture. However, the republican reinterpretation
of basic rights given in the concluding examples will offer another politi-
cal alternative, focusing specically on the political incorporation of
Turkish immigrants and permanent minorities at the EU level in order
to develop a form of multicultural republicanism consistent with revi-
sionist practices.
While the following sections will be mostly comprised of examples
from institutions and practices within the EU that meet the criteria of
freedom as non-domination, we also need a more theoretically informed
notion of institutional design to corroborate the account of freedom.
21
To achieve this broader scope of rights to equal political participation,
I follow Joseph Weiler, James Bohman and Gerald Ruggie for my
interpretation of the EU as a multiperspectival polity.
22
This is the
analytic prism chosen to make it intelligible as a political order by seeking
to preserve rather than overcome its complex three-pillar structure.
These scholars correctly acknowledge that no single all-encompassing
theory of democracy can adequately capture its diverse practices and
novel functions.
23
By facilitating democratic accountability between
plural sites of sovereignty and preserving the prevailing administrative
cultures in the EU, regarding the EU as a multiperspectival polity will
thus require signicant modications of the republican tradition.
24
In recent work on this topic that signicantly develops the republi-
can tradition beyond some of the shortcomings of Youngs approach,
25
James Bohman argues that acts of shared participation in deliberative
practices should be taken as basic rights to political participation. This
democratic norm has ttingly been termed by him the democratic
minimum: the capability to initiate deliberation and thus participate in
democratic decision making processes.
26
For example, in contrast to
other republicans like Philip Pettit that defend accountability as the
minimal threshold for democratization of transnational deliberations,
Bohman shows that there is an array of cases where accountability
conditions are met while domination still occurs. For example, in
entrenched forms of majority rule, those in power might remain
accountable to the publics served through competitive elections and still
dominate permanent minorities and permanently resident third-country
nationals. Political domination could still occur under conditions of
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accountability when those subjected to majoritarian decision-making
cannot exercise the capacity to bring new issues to debate and do not
enjoy the capacity to amend the constitutional order.
As a way to offer some insights concerning possible ways to realize
the democratic minimum as a response to the EU democratic decit,
in continuation of the examples offered in the previous sections, I will
turn almost exclusively to prevailing political practices that include
EU immigrants, third-country nationals and the minorities of member
and applicant states. The following application of the work of Bohman
on the democratic minimum shows how Youngs main methodologi-
cal commitments could be rendered more consistent with transnational
democracy than Habermas. It is also an improvement over Young insofar
as the normative relevance of social and economic ties of interdepen-
dence for Bohman becomes more an issue of realizing basic democratic
rights to freedom as non-domination instead of the more abstract appeal
to being mutually affected by shared policies.
27
These examples thus
propose various ways to realize a democracy of democracies through
this novel polity.
For example, as a concrete institutional expression of my rejection
of European-wide collective self-determination, the Forum of Migrants
in the European Union provided a means for immigrants to exercise
rights of deliberative initiation to ensure freedom as non-domination
against racism. In effectively doling out rights to political participation,
this example goes one step further than Youngs principle of all affected
by ties of interdependence insofar as the latter condition could be
secured by allowing immigrants and third-country nationals forms of
participation without permitting them to initiate and shape the very
terms of the debate. Although the Forum of Migrants has since been
disbanded due to unresolved disputes over how the leaders of groups
represented should use funds, it serves as a good illustration of the
normative ideal of non-domination and for how the democratic minimum
could and should be realized institutionally:
Immigrants active in the Forum maintained that their presence in this
web through transnational networks conferred a right to participate in
shaping Europe and introduce activists to European citizenship. From
their perspective, citizenship derives principally from political participation
in public life.
28
Such an example suggests ways to realize rights to deliberative initia-
tion through the exercise of a distinctly European citizenship without
the requirement of citizenship in a member state of the EU. The example
therefore differs from Habermas constitutional patriotism in that it
does not assume a collective will of a constructed European people.
Instead it incorporates the perspectives of those individuals and groups
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of immigrants that for some immigrant activists constituted a 13th
nation that was not adequately represented at the signing of the Maas-
trict treaty.
29
Immediately following the signing of Maastrict, immi-
grants participating in this forum utilized these novel institutional forms
to make up for any democratic decits by initiating deliberation over
ways to combat racism and xenophobia within EU member states
through organizations at the EU level.
30
In addition to these practices, there are also other innovative insti-
tutions in the EU for realizing the democratic minimum for immigrants
and third-country nationals. For example, the specic contribution of
the Open Method of Coordination (OMC) in the EU is to look to the
realization of Iris Youngs republicanism at the transnational level as a
particular response to the problem of democratization posed by the EU
democratic decit.
31
Not only does this example supply a legal-juridical
form for the realization of basic rights for immigrants in particular politi-
cal communities that face shared problems, it serves to make the EU and
its member states more democratic. This is achieved by promoting a
shared commitment to a common EU human rights policy while also
allowing for the realization of rights that respect broad differences in
member state political cultures.
While the OMC was a process originally inaugurated with the
European Employment Strategy (EES), its success in this realm has led
to experimentation in a broad array of other policy elds including
research and development, economic and social policy and now human
rights.
32
And as an encouraging recent development to support this revi-
sionist interpretation of the status of immigrant and minority rights, the
aforementioned OMC is a general method for the implementation of
laws and policies in the European Union that scholars have shown has
an increasing salience to the status of participatory rights for immigrants
and permanent minorities in the EU.
33
As real cases to support the possible extension of the OMC to immi-
grants and permanent minorities, there is an evolving precedent of basic
rights to non-discrimination and cultural diversity within most of the
member states of the EU. According to the accepted procedures of the
OMC, the best practices achieved by member states ensuring the rights
of their immigrants to initiate deliberation could eventually serve as
benchmarks for the European-wide implementation of the rights of
national minorities and resident immigrants that now also fall under
articles 21 and 22 of the EU Fundamental Charter.
34
And although the
federated scope and extent of such targets would have to proceed on an
experimental basis, the European Convention of Human Rights already
entitles foreigners without nationality of any EU member state to appeal
to the European Court of the Rights of Man and the EU Court of Justice
for the ongoing juridical recognition of rights.
35
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Bowman: Challenging Habermas response
Minority rights to deliberative initiation would be multi-faceted in
that they receive their expression in different member state legal and
institutional sites in ways that circumvent traditional views of political
membership secured by abstracting from cultural particularity.
36
In a
distinctly republican guise, employing a principle of effective partici-
pation as a monitoring benchmark for meeting the democratic minimum
could also protect the rights of minorities if they were denied a minimal
degree of representation in the legislature by the majority in power. In
such cases, the right of minorities to initiate debate overrides the majori-
tarian will of the people specically when their power is found to be
arbitrary and foster political domination.
37
In an effort to give a democratic realization of these rights, they are
not merely legal-juridical. Turkish minority groups in the EU have drawn
on both formal legal institutions and the emerging institutions of civil
society to organize politically European-wide. Rather than promoting
relations of non-interference in the self-legislating autonomy of the
majority political culture, Turkish minorities defend rights to initiate
debate by refusing to remain unrecognized by member state political
cultures. Instead, they seek political recognition in different member
states in distinct ways that institutionalize forms of democratic partici-
pation through the distinct legal cultures of each member state.
For example, in France, in light of its secular republican tradition,
Turkish minorities there seek enhanced rights to religious expression for
a more multicultural rendition of republicanism.
38
And in a different claim
to rights to political non-domination, in Germany, in light of its historical
ties between nationality and citizenship rights, Turks seek rights to dual
citizenship.
39
Finally, as a more lucid illustration of rights to deliberative
initiation with respect to its own treatment of its minorities, although
Turkey is currently a mere applicant state to the EU, a 1998 judgment of
the European Court recently upheld the right of the minority Socialist
Party in Turkey to the freedom of association as ensured by the European
Human Rights Convention.
40
This overturned the prior judgment of the
Turkish Constitutional Court that found the Socialist, Kurdish-leaning
party to be acting contrary to Turkish constitutional tradition by calling
for the radical transformation of Turkey into a federal state.
Such ongoing monitoring of Turkish practices by the formal
procedures of the European Court and the more informal European-wide
mobilization of Turkish immigrants residing in EU member states has
led to the initiation of the rst-ever public debates in Turkey concern-
ing the status of its minorities in light of possible EU membership. These
examples thus serve to show that in contrast to the assumed preference
for the local in some more conventional federal responses to the demo-
cratic decit that appeal to subsidiarity,
41
EU-level institutions can in
some instances encourage member states and applicant states to realize
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Philosophy & Social Criticism 33 (6)
human rights better and when fostering the enhanced participation of
diverse political programs also make these states more democratic.
42
V Conclusion
The various examples of the republican realization of human rights are
made possible when minority rights, religious and cultural freedoms can
inuence a number of levels and apply to dominated groups that extend
across national borders. These legal spheres emerge neither exclusively
at the national nor the supranational level but rather come about
through both, taken in concert. On the one hand, they emerge through
member and applicant state institutions, and the other hand, they are
also realized only by virtue of appeal to rights to deliberative initiation
embodied in the EU Fundamental Charter and the European Conven-
tion on Human Rights. Rights to effective political participation from
minorities can therefore derive from an array of monitoring institutions
that include the Commission, member states, EU-level courts and trans-
national migrant groups in various European public spheres. Such
permanent monitoring practices would thereby foster opportunities for
the pragmatic formulation of new spheres of legal activity to socialize
excluded individuals into rights-promoting institutions from an array of
possible levels in accord with modes of integration characteristic of
republican freedom as non-domination.
In broad summation, I have sought to democratize the transnational
law and policy of the EU in conformity with the republican proposals
for equality and inclusion set forth by Iris Young. However, her proposal
erred on the end of being too inclusive, since diverse forms of member-
ship cannot grant rights to political self-determination to all those parti-
cipating in its economic and social networks. By virtue of appeal to
Bohmans democratic minimum, her view can be circumscribed to apply
to those immigrants, permanent minorities and third-country nationals
politically dominated by not being granted basic rights to deliberative
initiation. Therefore, even those immigrants affected by EU law and
policy that cannot currently claim EU citizenship rights must still be able
to expand the system of rights to accommodate their multiple forms of
political identity when arbitrarily dominated by ties of interdependence.
In the end, such a model thus offers an alternative to Habermas
European-wide constitutional patriotism that is more attuned to the
pervasive ties of interdependence that will only grow as shared social
problems continue to defy the limits of conventional geographic, national
and constitutional jurisdictions.
Department of Philosophy, St Louis University, St Louis, MO, USA
PSC
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Bowman: Challenging Habermas response
Notes
I am grateful to James Bohman for his ongoing help and advice on this research
project. I would also like to thank Bill Rehg and Michael Barber for their
suggestions for revision and James Swindal for his continual encouragement.
Finally, I am indebted to audiences at Saint Louis University and the 2004
Montreal Critical Theory Roundtable for their invaluable feedback and chal-
lenging questions.
1 Jrgen Habermas, Kants Perpetual Peace, in The Inclusion of the Other:
Studies in Political Theory, ed. Ciarin Cronin and Pablo de Greiff
(Cambridge, MA: MIT Press, 1998), pp. 165202. See in particular
footnote 62, p. 286, which reads: The implications of the rights to political
participation for human rights are such that everyone has at any rate the
right to belong to one political community as a citizen (original emphases).
2 Jrgen Habermas, Does Europe Need a Constitution? Response to Dieter
Grimm, in The Inclusion of the Other, pp. 15561.
3 Jrgen Habermas, The Postnational Constellation and the Future of
Democracy, in Max Pensky, The Postnational Constellation: Political
Essays, trans. M. Pensky (Cambridge, MA: MIT Press, 2001), pp. 58112.
4 ibid., p. 77.
5 Jrgen Habermas, The European Nation-State and the Pressures of Globaliz-
ation, New Left Review 235 (1999): 4654.
6 Habermas, Postnational Constellation, pp. 556.
7 Jrgen Habermas, Why Europe Needs a Constitution, New Left Review
11 (2001): 526.
8 John G. Ruggie, Constructing the World Polity (London: Routledge, 1996),
p. 195.
9 Iris Young, Inclusion and Democracy (Oxford: Oxford University Press,
2000), p. 239.
10 ibid., p. 222. See in particular footnote 39.
11 ibid., p. 258.
12 ibid., p. 259.
13 This view of rights is close to Habermas own position: the standards of
human rights stem less from the particular cultural background of Western
civilization than from the attempt to answer specic challenges posed by
a social modernity that has in the meantime covered the globe (121).
Habermas, Remarks on Legitimation through Human Rights, in Post-
national Constellation, pp. 11329.
14 Young, Inclusion and Democracy, p. 265.
15 Jrgen Habermas, Citizenship and National Identity, rst published as a
monograph, Staatsbrgerschaft und nationale Identitt. berlegungen zur
europischen Zukunft (St Gallen: Erker-Verlag 1991), p. 514. Reprinted
in Jrgen Habermas, Between Facts and Norms, trans. W. Rehg (Cambridge,
MA: MIT Press, 1998), pp. 491515.
16 Jrgen Habermas, Struggles for Recognition in the Democratic State, in
The Inclusion of the Other, p. 231 (pp. 20336).
17 Jo Shaw, The Interpretation of European Union Citizenship, p. 317. The
Modern Law Review 61 (1998): 293317.
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Philosophy & Social Criticism 33 (6)
18 Young, Inclusion and Democracy, p. 219.
19 ibid., p. 260.
20 Will Kymlicka, The Evolving Basis of European Norms of Minority
Rights: Rights to Culture, Participation, and Autonomy, in J. McGarry
and M. Keating (eds) European Integration and the Nationalities Question
(London: Routledge, 2006), pp. 3563.
21 Jonathan Bowman, The European Union Democratic Decit: Federalists,
Skeptics, and Revisionists, European Journal of Political Theory 5(2)
(2006): 191212.
22 For the rst discussion of the EU as a multiperspectival polity, see John G.
Ruggie, Constructing the World Polity: Essays on International Institution-
alization (London: Routledge, 1998).
23 Joseph Weiler, European Democracy and Its Critics: Polity and System, in
The Constitution of Europe (Cambridge: Cambridge University Press, 1999),
pp. 26485. While Weiler does not use the term multiperspectival, he
refuses to follow federalists or Euro-skeptics in their unitarian and mono-
lithic approaches to settling upon a theoretical framework for assessing
the democratic qualities of the EU. Due to the three-pillar structure of the
EU, Weiler opts instead to speak in terms of three interspersed modes of
governance: international, supranational and infranational; ibid., p. 271.
24 See, for example, Kostas A. Lavdas, Republican Europe and Multicultural
Citizenship, Politics 21(1) (2001): 110. John Schwarzmantel, Citizenship
and Identity: Towards a New Republic (London: Routledge, 2003). For a
multicultural approach to republicanism with France as the model, see Jeremy
Jennings, Citizenship, Republicanism and Multiculturalism in Contempor-
ary France, British Journal of Political Science 30 (2000): 57598.
25 James Bohman, Decentering Democracy: Inclusion and Transformation in
Complex Societies, in The Good Society 13(2) (2004): 4955.
26 James Bohman, Democracy Across Borders: From Demos to Demoi
(Cambridge, MA: MIT Press, 2007).
27 Bohman, Decentering Democracy, p. 51.
28 Rika Kastoryano, Transnational Networks and Political Participation: The
Place of Immigrants in the European Union, in Mabel Berezin and Martin
Schain (eds) Europe Without Borders: Remapping Territory, Citizenship, and
Identity in a Transnational Age (Baltimore, MD: Johns Hopkins University
Press, 2003), pp. 767 (6485).
29 ibid., p. 66.
30 ibid., pp. 6970.
31 Under the OMC, the European Commission, the main regulatory body in
the EU, usually employs the research of experts in its committee system to
compare the policies of member states in a given eld. Member states are
encouraged to provide National Action Plans (NAPs) in meeting a particu-
lar policy goal and these are overseen by the commission in the implemen-
tation process. Experimental pilot programs are also developed and
sometimes funded at the EU level in order to nd the best policies that
member states employ to face a given policy dilemma. Best practices then
are established as targets for other member states either to meet or to surpass
through means that still respect broad differences between the various
administrative cultures present in the EU.
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32 Nick Bernard, A New Governance Approach to Economic, Social, and
Cultural Rights in the EU, in T. K. Hervey and J. Kenner (eds) Economic
and Social Rights under the Fundamental Charter of Social Rights of the
European Union (Oxford: Hart Publishing, 2003), pp. 24768. Olivier de
Schutter, The Implementation of Fundamental Rights through the Open
Method of Coordination, in Olivier de Schutter and Simon Deakin (eds)
Social Rights and Market Forces: Is the Open Method of Coordination of
Employment and Social Policies the Future of Social Europe? (Brussels:
Bruylant, forthcoming).
33 See Alexander Caviedes, The Open Method of Coordination in Immigration
Policy: A Tool for Prying Open Fortress Europe?, Journal of Public Policy
11(2) (2004): 289310. For a good discussion of minority rights and the
OMC, see Guido Schwellnus Much Ado about Nothing? Minority Protec-
tion and the EU Charter of Fundamental Rights, in Constitutionalism Web-
Papers: ConWEB No. 5/2001, available at: http://les1.amn.ac.uk/ conweb/
34 However, due primarily to the relative success of the OMC in other policy
elds, presently the member states of the EU are reluctant to follow the
recent recommendations of the commission to subject immigration policy
to the OMC. Caviedes, Open Method of Coordination.
35 Joseph Weiler, points to the case of Gayusuz v. Austria that went to the
European Court of Human Rights and led to the extension of social security
benets to third-country nationals (p. 719). An Ever Closer Union in
Need of a Human Rights Policy, European Journal of International Law
9 (1998): 658723.
36 Jeremy Jennings, Citizenship, Republicanism and Multiculturalism in
Contemporary France, British Journal of Political Science 30 (2000):
57598.
37 Philip Pettit, Republicanism(Oxford: Oxford University Press, 1997), p. 180.
38 Jennings, Citizenship, Republicanism and Multiculturalism, pp. 5934.
39 Rika Kastoryano, Citizenship: Beyond Blood and Soil, in Mohsen-Finan
Leveau and Wihtol de Wenden (eds) New European Identity and Citizen-
ship (Burlington, VT: Ashgate Publishing, 2002), pp. 10116.
40 Bruno de Witte, Politics versus Law in the EUs Approach to Minorities,
in Jan Zielonka (ed.) Europe Unbound: Enlarging and Reshaping the
Boundaries of the European Union (London: Routledge, 2002), p. 145
(pp. 13760).
41 For such approaches to the democratic decit, see Andreas Follesdal,
Subsidiarity and Democratic Deliberation, in Erik Eriksen and John Fossum
(eds) Democracy in the European Union Integration through Deliberation?
(London: Routledge, 2000), pp. 85110. See also Andreas Follesdal,
Survey Article: Subsidiarity, Journal of Political Philosophy 6(2) (1998a):
190219. Neil MacCormick, Democracy, Subsidiarity, and Citizenship in
the European Commonwealth, Law and Philosophy 16 (1997): 33156.
42 Bruno de Witte, in Politics versus Law in the EUs Approach to Minorities
emphasizes that this was precisely the justication of the judgment given by
the European Court which found that It is of the essence of democracy to
allow diverse political programs to be proposed and debated, provided that
they do not harm democracy itself (p. 145).
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